Updated: Jul 21, 2020
By Dick Lieberman, Consultant and Retired Attorney
Black’s Law Dictionary (5th Ed. 1979) defines “incorporation by reference” as the “method of making one document ...become a part of another separate document by referring to the former in the latter, and declaring that the former shall be taken and considered as a part of the latter the same as if it were fully set out therein.” Agencies, which are the writers of government contracts, would be hard pressed to draft contracts without this artifice of language, and government contractors must be careful to understand its implications. A misuse of incorporation by reference was explained in a recent bid protest, IBM Corp. v. United States, No. 14-864C (Fed. Cl. Nov. 7, 2014).
The Federal Acquisition Regulation (“FAR”) and Incorporation by Reference
Almost every government contract incorporates contract clauses by reference. Indeed, a typical government contract may incorporate 10 to more than 200 clauses by reference. FAR 52.107 directs contracting officers to insert the provision at 52.252–1, Solicitation Provisions Incorporated by Reference, and the clause at 52.252–2, Clauses Incorporated by Reference, in solicitations and contracts in order to incorporate those provisions by reference. These two clauses are set forth below.
FAR 52.252–1 Solicitation Provisions Incorporated by Reference
This solicitation incorporates one or more solicitation provisions by reference, with the
same force and effect as if they were given in full text. Upon request, the Contracting
Officer will make their full text available. The offeror is cautioned that the listed
provisions may include blocks that must be completed by the offeror and submitted with
its quotation or offer. In lieu of submitting the full text of those provisions, the offeror
may identify the provision by paragraph identifier and provide the appropriate
information with its quotation or offer.
FAR 52.252–2 Clauses Incorporated by Reference
This contract incorporates one or more clauses by reference, with the same force and
effect as if they were given in full text. Upon request, the Contracting Officer will make
their full text available.
If either of these clauses appears in a contract